Rated for fibromyalgia and generalized anxiety?

Discussion in 'Fibromyalgia' started by Goonie, May 12, 2011.

  1. Goonie

    Goonie PEB Forum Veteran

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    Someone please check my references and reasoning here. I have to decide whether or not to appeal to FPEB by tomorrow. I know I could appeal just to be safe but I don't want to appeal if I don't have a case. I'd rather not waste the Air Force's time or my time.

    With regard to rating both Generalized Anxiety Disorder (GAD) and Fibromyalgia (FMS) I'm now doubtful I could have them both rated. This is especially true in my case because I do not have severe GAD. I would basically be pushing it to be rated 10% for GAD and that aligns very closely with the description of my severity of FMS, 20%.

    Here are some exceprts from the VASRD:

    (d) When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition (see §4.14). (Authority: 38 U.S.C. 1155)

    The VASRD description of a general mental disability rating of 10%:

    Occupational and social impairment due to mild or transient symptoms
    which decrease work efficiency and ability to perform occupational
    tasks only during periods of significant stress, or; symptoms controlled
    by continuous medication .................................................. ................................ 10

    The description of fibromyalgia and a 20% rating:

    5025 Fibromyalgia (fibrositis, primary fibromyalgia syndrome)

    With widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms:


    ...[left out 10 & 40% descriptions]

    That are episodic, with exacerbations often precipitated by
    environmental or emotional stress
    or by overexertion, but that

    are present more than one-third of the time............................................ 20

    maparker showed me this:
    From the 14 october 2008 DTM:

    E7.1.2. The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) shall be used in making ratings determinations for each of the medical conditions
    determined to be unfitting independently or due to combined effect, to include in combination with an independently unfitting condition. If more than 1 military unfitting condition exists, the VASRD will be used to determine a combined disability rating for each unfitting condition. For purposes of establishing a rating, the VASRD will be used in relation to the Service member's physical disability at the time of the evaluation. If use of convalescent ratings and/or other interim ratings (i.e prestabilization ratings) applies, the Service member may be placed on the Temporary Disability Retired List (TDRL) for reevaluation purposes.

    At first the paragraph E7.1.2. gave me some hope but now I'm thinking there's no way they would consider GAD an independently unfitting condition or consider it unfitting as a "combined effect" with fibromyalgia since fibromyalgia already includes/rates associated anxiety.

    Again, I would appreciate anyone weighing in on my reasoning and references.

    Thanks,
    Josh
  2. maparker

    maparker Staff Member PEB Forum Veteran

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    I really don't know how this would work out. However, if in doubt, request a formal. You can cancel your request up until the day the board is to be held. Are you a IDES case? If not, have you filed with the VA?

    Mike
  3. Goonie

    Goonie PEB Forum Veteran

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    I know I'm not on the pilot or new DES, so I'm guessing not IDES.

    I haven't filed with the VA. I thought I needed to wait until I had a seperation date. I can request a rating from the VA with my AF 356 / my informal board rating?
  4. maparker

    maparker Staff Member PEB Forum Veteran

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    If the VA did the rating on your case, you are under the IDES. If the AF rated your condition, you are under the legacy DES. Ask your PEBLO. Also, under the IDES, all conditions would have been evaluated and received a rating by the VA. If legacy DES, you need to file with the VA immediately under the Benefits Delivered at Discharge program.

    Mike
  5. Goonie

    Goonie PEB Forum Veteran

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    So a lawyer from Lackland AFB called me earlier this week to give me legal counsel. In short, I am very unlikely to have my anxiety rated because it's not severe enough to be rated independently of Fibromyalgia. I could have lost my 20% when they reviewed my full medical records. I have no good grounds with which to appeal and I could lose what I was offered, so I did not appeal.

    For the most part what I had interpreted in the rules was correct.

    With regard to rating Fibromyalgia and Anxiety, the lawyer said that I would not be rated for Anxiety AND Fibromyalgia because code 5025 Fibromyalgia has this statement:

    "with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms"

    The lawyer said that they include that wording to avoid pyramiding. In other words, all of those conditions listed would be lumped under Fibromyalgia for ratings. If one of the conditions listed were extremely severe its possible that you could argue to have them both rated. For example, if the your depression or anxiety was so severe it could be rated at 50, 70, or 100 percent you could probably be rated for both Fibromyalgia and a mental disorder. However, if you read up the general formula for rating mental disorders you'll find its difficult to be rated that high. Link to the ratings for mental disorders here: http://www.benefits.va.gov/warms/docs/regs/38CFR/BOOKC/PART4/S4_130.DOC

    Another reference to how they rate fibromyalgia and is associated symptoms is to look how multiple sclerosis (MS) is rated. The lawyer said MS can cause issues with vision, tremors, and a host of other bad stuff. If you have MS they will treat it like fibromyalgia and will not rate you for each individual side effect of MS. I'm sure there are exceptions like I mentioned above with fibromyalgia but that's the general rule.

    Now, to explain how I might have lost my rating in my circumstances. I got in a car wreck when I was 16 and injured my back. Back then the doctors couldn't find anything wrong with me to explain why I was still having so much muscle pain a year and a half later. When I joined up, as it happens with most everyone, the recruiter said not to mention it. For the first 3 or 4 years I didn't have any major problems in the AF. I had to be careful in some physical activity but I got by, and actually I wasn't convinced I had fibromyalgia. But eventually it got worse and when I did start having problems I was never dishonest about the car wreck and mentioned it to several physicians along the way. The rheumatologist who wrote up my final diagnosis, and probably wanted to help me, only made a minor note about the car accident. I also just noticed recently that he botched up the timeline so that the car wreck happened right after I joined up. Since it was an informal board they only reviewed some basic medical records and the rheumatologist notes.

    Now this is important! Everyone has been telling me that I have nothing to lose going to the Formal PEB because I can refuse to see the board right up to the very last minute. THIS IS ONLY TRUE IF YOU ARE OVER 8 YEARS! I'm at 7 years and some change. The lawyer told me that when I appealed my entire medical record would be reviewed and it could change my rating whether or not I decide to go through with the Formal board. If I was over 8 years they couldn't change my rating. If I was willing to lie to the board, maybe I still could have kept my rating or there's a chance they wouldn't have noticed the car wreck in my records, but the risk was there.

    I know this was a lengthy post but I think it has some really good information. Thanks for your time.
    Josh

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